DKE17 v Minister for Immigration
[2018] FCCA 2269
•7 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DKE17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2269 |
| Catchwords: PRACTICE AND PROCEDURE – Show cause hearing – unparticularised grounds of review – lacked merit – evidence of allegedly erroneous interpretation at tribunal hearing not adduced – applicant sought impermissible merits review – application summarily dismissed. |
| Legislation: Migration Act 1958, ss.36(2)(a), 36(2)(aa) Federal Circuit Court Rules 2001, rr.44.12 |
| Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510 Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 Toura v Minister for Immigration and Border Protection [2017] FCA 1405 WZATH v Minister for Immigration and Border Protection [2014] FCA 969 WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 |
| Applicant: | DKE17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1654 of 2017 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 7 August 2018 |
| Date of Last Submission: | 7 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 7 August 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Applicant: | None |
| Counsel for the First Respondent: |
| Solicitors for the First Respondent: | DLA Piper Australia |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | DLA Piper Australia |
ORDERS
The application filed on 31 July 2017 is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $3 370.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1654 of 2017
| DKE17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(ex tempore)
Introduction
By order of a registrar of this court made on 4 April 2018 this case was ordered to proceed before me today as a show cause hearing pursuant to r 44.12 of the Federal Circuit Court Rules. On the return of a show cause hearing a judge in my shoes has power under r 44.12 to make any number of orders, including an order dismissing the whole case. However statements of principle from the High Court of Australia in Spencer v Commonwealth of Australia[1] and from the Full Court of the Federal Court of Australia in AMF15 v Minister for Immigration and Border Protection[2] have held that an order for summary dismissal of a proceeding is not to be lightly made.
[1] (2010) 241 CLR 118
[2] [2016] FCAFC 68
The applicant is a male citizen of Malaysia, born 30 January 1986. He arrived in Australia on 14 March 2014 on a visitor’s visa. He became an unlawful non-citizen on 15 June 2014. Almost two years later, on 25 January 2016 he applied for a protection visa. His claims for protection were recorded in a statement accompanying his visa application. Relevantly paraphrased, they may be stated as follows –
a)he claimed to be an interior designer and that he was unable to attain promotion within his employer by reason of his Chinese ethnicity;
b)he claimed the Chinese are always discriminated against by native Malays;
c)he claimed he commenced a new career in 2008 as a gambling agent and he described the name of his ultimate employer as “big boss”;
d)he claimed that in 2010 a gambling client whose name was given as Adam won 500 000 Malaysian Ringgit, which the big boss was unable to pay and, as Adam was a gangster, when Adam was unable to find the applicant’s boss, Adam threatened to kill the applicant if he (the big boss) did not pay the money;
e)he said he could not afford to pay the amount claimed by Adam;
f)the applicant sought help from the police but by reason of bribes made by Adam to the police, the police ignored the applicant;
g)between 2011 and 2013, the applicant went into hiding; and
h)the applicant asserted that if he returned to Malaysia, Adam would find the applicant and kill the applicant.
On 12 December 2016 the minister’s delegate refused the applicant’s application for a protection visa. In essence the delegate found that the applicant was able to live in Malaysia from 2011 to 2014 without incident.
Being dissatisfied with the decision of the delegate, the applicant sought a merits review before the Administrative Appeals Tribunal. He applied to the tribunal on 30 April 2016 and attended a hearing before it on 9 September 2016.
On 30 June 2017 the tribunal affirmed the decision of the delegate not to grant the applicant the protection visa he sought. The tribunal took the view that the applicant was not a person in respect of whom Australia owed protection obligations. The tribunal took the view that the applicant did not satisfy the criteria set out in ss 36(2)(a) or 36(2)(aa) of the Migration Act.
One of the key reasons for its decision to refuse the applicant’s protection visa application lay in the tribunal’s determination that the applicant was not a credible witness. At paragraph 38 of its reasons, the tribunal said the applicant had given inconsistent evidence about when the incident involving Adam occurred. The tribunal took the view that, having regard to the importance of the event, the applicant should have but was unable to recall the details of the incident. The tribunal took the view that it regarded as being implausible that Adam would target the applicant rather than the applicant’s big boss (presumably for non-payment of the gambling debt). And further, in paragraph 39 of its reasons, the tribunal said it did not accept that Adam targeted the applicant.
In paragraph 40 if its reasons, the tribunal had regard to the delay of two years between the applicant’s arrival in Australia and his application for protection. The tribunal did not accept the applicant’s explanation for the delay. The tribunal took the view that the applicant’s evidence was dubious when he said that his ability to remain in Malaysia was at risk following the incident with Adam, and in paragraph 41 of its reasons, the tribunal said that the asserted explanation for the applicant’s inability to remain in Malaysia cast doubt about the whole of his claims.
The tribunal made observations about aspects of the applicant’s evidence that it did not accept. They were –
a)that the applicant had worked for a gambling network;
b)that a client named Adam won 500 000 Malaysian Ringgit;
c)that the applicant’s big boss did not pay that sum to Adam; or
d)that Adam and his gang came after the applicant and threatened to kill the applicant if he did not pay Adam.
Those observations were recorded in paragraph 42 of its reasons.
The tribunal did not accept that the applicant faced a real chance of persecution, as reasoned in paragraph 44, or that the applicant faced a real risk of significant harm in Malaysia as reasoned in paragraph 45.
Before addressing the grounds of application brought in this case, it is useful to record certain preliminary observations about the tribunal’s approach to this case. On matters of credibility, adverse findings to an applicant will not necessarily immunise those findings from review. So much was held in Gill v Minister for Immigration and Border Protection,[3] and has been repeated in many decisions of the Full Court of the Federal Court of Australia thereafter. Put slightly differently, it is not sufficient for a tribunal to simply say it does not accept the applicant’s version of events without attributing a reason to that non-acceptance.
[3] [2016] FCAFC 142
It seemed to me that the inconsistencies identified in paragraph 38 of its reasons were open. It seemed to me that the tribunal’s construction of implausibility about the applicant being Adam’s target was, likewise, open. Similarly, the tribunal’s conclusion that the applicant was able to remain in Malaysia following the incident with Adam, casting doubt about the truth of the applicant’s claims, was similarly open.
Further, in paragraph 40 of its reasons, the tribunal identified the existence of a two year delay between arrival and protection visa application lodgment. In Selvadurai v Minister for Immigration and Ethnic Affairs,[4] Heerey J of the Federal Court of Australia held that a delay between arrival and application for a protection visa was a relevant consideration.
[4] [1994] FCA 1105
By application in this court, filed 31 July 2017, the applicant sought judicial review of the tribunal’s decision. He relied on an array of “grounds”, none of which were the subject of particulars. Let me record them verbatim (with errors in the original) –
1.For my decision of protection visa refusal to be reviewed;
2.I could not get supporting document from Malaysia;
3.Lack of English;
4.The interpreter might not interpret the exact meaning of my response during the hearing
Before turning to the elements of each ground, as mentioned above, no particulars of any ground was given. A strong line of decisions in the Federal Court of Australia has held that the absence of particulars of a ground of review is a basis for dismissal of the ground on that basis alone. Those cases include WZATH v Minister for Immigration and Border Protection,[5] BHK15 v Minister for Immigration and Border Protection,[6] AQN15 v Minister for Immigration & Anor,[7] and WZAVW v Minister for Immigration and Border Protection.[8]
[5] [2014] FCA 969
[6] [2016] FCA 569
[7] [2016] FCA 571
[8] [2016] FCA 760
Next, it is relevant to point out that the obligation fell to the applicant to demonstrate his entitlement to the visa that he sought. It is up to the applicant to provide his or her evidence in sufficient detail to enable the decision maker to establish the relevant facts. The decision of the Full Court of the Federal Court of Australia in Minister for Immigration and Multicultural Affairs v Lay Lat[9] makes that point. The High Court held in Abebe v Commonwealth of Australia[10] that it is not for the minister to make out the applicant’s case for him, nor is the tribunal required to make out the applicant’s case for him as was held in Minister for Immigration and Citizenship v Le[11] and in Toura v Minister for Immigration and Border Protection,[12] an unsuccessful appeal from one of my own decisions.
[9] (2006) 151 FCR 214
[10] (1999) 197 CLR 510
[11] (2007) 164 FCR 151
[12] [2017] FCA 1405
In addition, two decision of the Federal Court have held that, irrespective of the court concluding that an applicant may not have an arguable case for the relief he seeks, the court nevertheless possesses a residual discretion to refuse to grant an order summarily dismissing the proceeding. Those cases include Siddique v Minister for Immigration and Border Protection[13] and SZTTW v Minister for Immigration and Border Protection.[14]
[13] [2014] FCA 1352
[14] [2014] FCA 837
Let me now turn to each ground.
Ground one
Under this ground, the applicant contended that he could not get supporting documents to the tribunal. It must be remembered, based on the authorities referred to above, that it falls to the applicant, and no one else, to make out his case. If he was unable to get documents to the tribunal then that was a matter that fell at his feet. He was required to prove certain things which he was unable to do. That does not tell of the existence of jurisdictional error.
This ground had no merit.
Ground two
Under ground two, the applicant asserted that he lacked English. I infer, although the ground is not well expressed, that the applicant was contending that he did not have the linguistic skills to adequately advance his case. He was assisted by a Mandarin interpreter at the hearing.
Ground two had no merit.
Ground three
Under the third ground, the applicant contended that the interpreter might not interpret the exact meaning of his responses during the hearing. Ordinarily, where an applicant contends that an interpreter has been unfaithful in his or her interpretation obligations, the applicant usually provides a transcript of the interpretation as given and compares that by means of an audio recording with the interpretation the applicant says ought to have been given. No such evidence was given in this case.
Moreover, the ground merely hints at the possibility of there being deficiencies in the translation. The applicant did not identify any items of translation that were defective. Still less, was he able to say they were pivotal to the outcome.
Ground three had no merit.
Today I asked the applicant to tell me in his own words what he said the tribunal did wrong in this case. He pointed to two things. He said the translation failed. He gave no details of his contentions in that regard, and the solicitor for the minister properly left his evidence alone on that point. Second, he said he was dissatisfied with the outcome and the tribunal erred in its conclusions about inconsistencies.
To my mind, he was endeavouring to embark upon a merits review of this case. The conduct by me of judicial review is permitted, whereas a merits review is not permitted, as was held in Attorney-General (NSW) v Quin[15] and Minister for Immigration and Ethnic Affairs v Wu Shan Liang[16] to name but a few of the leading cases on point.
[15] (1990) 170 CLR 1
[16] (1996) 185 CLR 259
Conclusion
The applicant failed in his application to this court for judicial review. I dismiss this proceeding.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 17 August 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Standing
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Summary Judgment
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Statutory Construction
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